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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HAKIM ROBINSON
Appellant No. 3718 EDA 2016
Appeal from the PCRA Order October 25, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0208872-2001
BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 13, 2017
Hakim Robinson appeals from the order denying his second PCRA
petition as untimely. We affirm.
On April 30, 2002, a jury convicted Appellant of second-degree
murder, robbery, burglary, and conspiracy. The convictions stemmed from
the August 29, 2000 conspiracy among Appellant, Robert Jones, and Fred
Porter to rob Richard Williams, Jr., a drug dealer in West Philadelphia.
During the course of the robbery, Porter, a juvenile, fatally shot Williams.
Appellant was twenty-one at the time. The trial court imposed life
imprisonment without the possibility of parole for murder and an aggregate
term of two to six years for the remaining offenses. On July 9, 2003, we
affirmed the judgment of sentence. See Commonwealth v. Robinson,
* Former Justice specially assigned to the Superior Court.
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832 A.2d 543 (Pa.Super. 2003) (unpublished memorandum). Our High
Court dismissed the ensuing allowance of appeal as improvidently granted
on May 10, 2004. See Commonwealth v. Robinson, 851 A.2d 832 (Pa.
2004).
Appellant filed a timely, counseled PCRA petition, which the PCRA
court denied on March 22, 2006. We affirmed that order on August 27,
2007. He filed a second PCRA petition on June 27, 2012, invoking the
United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460
(2012), which prohibits the imposition of a mandatory sentence of life
imprisonment without the possibility of parole if the defendant was a
juvenile when he committed the crime. Appellant asserted that the principle
should be extended to adult co-conspirators. The PCRA court dismissed the
petition as untimely. Appellant did not appeal.
On June 5, 2015, Appellant filed his third PCRA petition. The initial
petition asserted a previously unknown fact regarding an alibi witnesses,
Lamont Wright, who Appellant claimed was not available during trial. The
PCRA court responded on March 15, 2016, by issuing notice of its intent to
dismiss the petition without hearing. On the same date, Appellant amended
his petition to invoke what he styled as “the new scientific fact that just
became available” on January 25, 2016 in Louisiana v. Montgomery, 136
S.Ct. 718 (2016). See Amended Third PCRA Petition, 3/15/16, at 1. The
PCRA court dismissed the petition as untimely. This timely appeal ensued.
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Appellant asserts two issues for our review:
1. Did the PCRA court err in finding that the [third] PCRA petition
was untimely filed, when the [petition asserted] new scientific
brain facts [and] was filed within 60 days of the new facts . . .
requiring a remand for the PCRA court to conduct an evidentiary
hearing with the appointment of counsel?
2. Did the PCRA court err in finding that the [third] PCRA petition
was untimely filed, when the new scientific brain evidence facts
directly altered Appellants conviction and sentence and an
evidentiary hearing was required to develop the novel claims in
light of the change in law and new facts and evidence that timely
filed under the exception to the timebar?
Appellant’s brief at vi.1
We review a PCRA court order to determine whether the PCRA court’s
determination is supported by the certified record and free of legal error.
Our Supreme Court has stated, “[a]n appellate court reviews the PCRA
court's findings of fact to determine whether they are supported by the
record, and reviews its conclusions of law to determine whether they are
free from legal error." Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.
2014). “The scope of review is limited to the findings of the PCRA court and
the evidence of record, viewed in the light most favorable to the prevailing
party at the trial level.” Id.
All PCRA petitions must be filed within one year of the date a
defendant's judgment becomes final unless an exception to the one-year
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1 Appellant abandoned his initial newly-discovered-evidence claim relating to
alibi witness Lamont Wright. See Appellant’s brief at 10. n.1.
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time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is
untimely, “neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
(citation omitted). We review that legal conclusion de novo. Id. As
Appellant’s sentence became final during 2004, when the period to file a
petition for writ of certiorari with the United States Supreme Court expired,
the instant petition is timely only if one of the statutory exceptions applies.
Section 9545 provides the following three exceptions that allow for
review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim
as a result of governmental interference; (2) the discovery of previously
unknown facts that could not have been ascertained by the exercise of due
diligence; and (3) a newly-recognized constitutional right that has been held
to apply retroactively. 42 Pa.C.S. § 9545 (b)(1)(i)-(iii). In addition, any
exception must be raised within sixty days of the date the claim could have
been presented. 42 Pa.C.S. § 9545(b)(2).
Instantly, Appellant attempts to circumvent the PCRA time-bar by
invoking our Supreme Court’s holding in Louisiana v. Montgomery, 136
S.Ct. 718 (2016), which gave retroactive effect to its prior holding in Miller,
supra, the case Appellant invoked in his second PCRA petition. He levels
two interrelated exceptions. First, Appellant contends that the
Montgomery Court disclosed “new scientific brain facts” that form an
exception pursuant to § 9545(b)(1)(ii), regarding previously unknown facts.
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Ostensibly, the new “brain fact” that Appellant invokes herein is the United
States Supreme Court’s recognition in Miller and retroactive application in
Montgomery that the brain of a juvenile offender is sufficiently
underdeveloped to warrant the prohibition of mandatory life sentences
without the possibility of parole. From that general principle, Appellant
extrapolates that the brain of his juvenile codefendant, Fred Porter, “was
legally defective[, thus,] breaking the chain and legally nullifying all statutes
in this case as they apply to appellant.” Appellant’s brief at 7. Appellant’s
second exception is more conventional. Essentially, he argues that
Montgomery espoused a newly-recognized constitutional right that has
been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(ii).
Both of Appellant’s contentions are predicated upon the assertion that
the Supreme Court’s holding in Miller, supra, should be extended to him
under the equal protection clause insofar as he is entitled to the same relief
as his juvenile co-defendant who committed the murder. In support of this
proposition, Appellant cites Commonwealth v. Cruz, 851 A.2d 870 (Pa.
2004), an unrelated case where our High Court concluded that, with regard
to purely legal issues, the disparate treatment of identically situated
codefendants was improper under the circumstances of that case. Appellant
posits that, since he filed the instant petition within sixty days of
Montgomery, he established both exceptions to the PCRA time
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requirements pursuant to § 9545(b)(1)(ii), and (iii). We address the issues
collectively, and for the following reasons, we deny relief.
Stated plainly, neither Montgomery nor Miller is applicable herein
because Appellant was not a juvenile when he committed his crimes. It is
well ensconced that Miller does not apply to non-juvenile offenders.
Moreover, this Court is not empowered to extend Miller to classes beyond
juveniles. See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super.
2016). Hence, the retroactive application of Miller, as announced in
Montgomery, has no application herein. Further, Appellant’s reliance upon
Cruz, supra, is misplaced. In contrast to Appellant’s protestations, he is
not similarly situated with his juvenile co-defendant. As we have indicated
throughout this memorandum, Appellant was twenty-one years old when the
murder occurred and Miller and Montgomery simply do not apply to non-
juvenile offenders. Appellant is not entitled to relief.
As neither Miller, supra nor Montgomery, supra can form the basis
of an exception to the PCRA time requirements under either § 9545 (b)(1)
(ii) or (iii), the instant PCRA petition is untimely and without any applicable
exceptions to the PCRA time-bar.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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